MOTION DISMISSED
RANDY J. KAIZER # 1730604 ,»_ jJ, q (J * IcT
C.T.TERRELL UNIT '"t'c "
1300 F.M. 655 " '
ROSHARON, TX 777583
RECEIVED IN
COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
CLERK, ABEL ACOSTA APR 2 3 2015
P.O.Box 12308
AUSTIN, TX 78711:
6ia,uienc
RE: RANDY J. KAIZER V. THE STATE OF TEXAS CAUSE NO: 10-CR-2388A
DEAR CLERK/
PLEASE FIND ENCLOSED FOR FILING PURPOSE THE FOLLOWING:
SUGGESTION FOR REMAND TO THE TRIAL COURT FOR AN!~ EVIDENTIARY HEARING
PLEASE FILE SAID SUGGESTION AND BRING IT TO'^THE..ATTENTION OF THE
COURT.
THANK YOU VERY MUCH FOR YOUR KIND ATTENTION IN THIS MATTER
PLEASE CONTACT ME AT/THE ABOVE ADDRESS WITH ANY RESPONDS.
RESPECTFULLY
RANM'J- KAIZER # 1730604
C.T.TERRELL UNIT
1300 F.M. 655
ROSHARON, TX 77583
IN THE COURT OF CRIMINAL APPEALS
WR NO:
EX PARTE V IN THE 28th JUDICIAL DISTRICT
RANDY J. KAIZER §
APPLICANT V COURT OF
V NUECES COUNTY/ TEXAS
SUGGESTION FOR A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING
TO THE HONONABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW; RANDY J. KAIZER/ APPLICANT/ PRO-SE IN THE ABOVE STYLE CAUSE
NUMBER AND RESPECTFULLY SUGGEST THIS COURT/ TO REMAND THE APPLICANT'S
APPLICATION TO THE 28th DISTRICT COURT WITH AN ORDER FOR THE TRIAL COURT
TO HOLD AN EVIDENTIARY HEARING FOR THE FOLLOWING REASONS/ TO-WIT:
APPLICANT WAS CONVICTED IN THE ABOVE CITED TRIAL COURT FOR/ CONTINOUS
SEXUAL ASSAULT OF A CHILD; INDENCY WITH A CHILD; AND AGGRAVATED SEXUAL
ASSAULT OF A CHILD AND WAS SENTENCED TO 60 YEARS OON COUNTS 1/3/4 and 20
YEARS JON COUNT 2 ran CURRENTLY. FOLLOWING AN UNSUCCESSFUL DIRECT APPEAL
AND REFUSED PDR(SEE APPLICATION FOR CAUSE NOS) APPLICANT FILED A PRO-SE
APPLICATION FOR A WRIT OF HABEAS CORPUS TO THE 28th DISTRICT COURT WITH
14 GROUNDSJOF CONSTITUTIONAL VIOLATIONS AND FUNDAMENTAL RIGHT TO DUE
PROCESS TO A FAIR TRIAL AND INEFFECTIVE ASSISTANCE OF COUNSEL ON 2/17/15
WHICH THE CLERK STAMPED FILED ON3/10/15
II.
THE STATE IN ITS ANSWER MADE A GENERAL DENIAL(SEE STATE'S ANSWER @ P.
2) AND FURTHER SUBMITTED THAT AN AFFIDAVIT WAS NOT REQUESTED FROM TRIAL
COUNSEL BECAUSE THE APPLICANT'S CLAIM LACK (MERIT BASED UPON AN APPLICATION
OF THE LAW TO THE FACTS PRESENTLY CONTAINED IN THE RECORD.
THE STATE'S ANSWER @ B. GROUND 2&14 INEFFECTIVE ASSISTANCE OF COUNSEL:
@ P. 3-6 SPECIFICALLY ADDRESSED THE APPLICANT'S CLAIM OF INEFFECTIVENESS.
1.
the STATE MISCONSTRUED AND MANIPULATED APPLICANT'S CLAIMS AND FAILED TO
PROPERLY ADDRESS TRIAL COUNSEL'S FAILURE TO INVESTIGATE/ APPLICANT'S
VERSION OF EVENTS OOF A THIRD PARTY PERPETRATOR AND CROSS EXAMINE THE
VICTIM CONCERNING THE APPLICANT'S ALIBI STATEMENT( MADE TO COUNSEL, COUNSEL
INVESTIGATOR, V.A. PSYCHIATRIST/ APPELLATE COUNSEL/ TRAVIS BERRY AND TO
MARIA MEDRANO/^AND TRIAL COUNSEL'S DECISION TO MOVE FORWARD WITH THE TRIAL
WITHOUT CALLING APPLICANT TO TESTIFY NOR ANY OF HIS CHARACTER WITNESSES.
III.
THE COURT PURSUANT TO11.0T7 V 3(d) FAILED TO DESIGNATE THE CONTROVERTED
PREVIOUSLY UNROLVED FACTS MATERIAL TO APPLICANT'S INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIMS/ WHICH THE STATE DENIED. THUS THE CONTROVERTED ISSUE AT
HAND. THE TRIAL COURT SHOULD HAVE DESIGNATED THE ISSUE TO BE RESOLVED/
BUT INSTEAD ON 4/3/15 SIGNED THE STATES PROPOSAL ;OF FINDINGS OOF FACTS
CONCLUSION OF LAW AND RECOMMENDATION WITHOUT AN EVIDENTIARY HEARING.
IV.
ABSENT, AN OPPORTUNITY TO CARRY HIS BURDEN OF SHOWING STRICKLAND'S
DUAL PRONGS( DEFICIENCY AND PERJUDICE) WHICH IS A REQUIREMENT ON A CLAIM
OF INEFFECTIVE ASSISTANCE OF COUNSEL. THAT MUST BE SUPPORT BY A RECORD
CONTAINING DIRECT EVIDENCE OF WHY COUNSEL ACTED (OR DIDN'T) AS HE DID.
IN EX PARTE TORRES/ 943 S.W.3d 469/475(T.C.A.1997) THIS COURT HELD/
"THE IN HERENT NATURE OF MOST INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
MEANS THAT THE TRIAL COURT RECORD WILL OFTEN FAIL TO CONTAIN THE INFO
RMATION NECESSARY TO SUBSTANTIATE THE CLAIM." ALSD/THE COURT STATED/
" IT IS ESSENTIAL TO GATHERING THE FACTS NECESSARY TO...EVALUTE... THE
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM." TORRES SUPRA @ 475.
V.
APPLICANT HAS PRESENTED IN HIS APPLICANT MEMO AN ALLEGATION OF
INEFFECTIVE ASSISTANCE OF COUNSEL, FOR FAILING TO INVESTIGATE, WHICH IF
2.
TRUE/ MAY ENTITLE HIM TO RELIEF. HOWEVER/ WITH THE UNDEVELOPED RECORD,
WHICH IS THE SAME RECORD AS ON DIRECT APPEAL/ APPLICANT IS UNABLE TO
SUBSTANTIATE HIS CLAIM BECAUSE THE TRIAL COURT DID NOT DESIGNATED ISSUES
WHICH ARE CONTROVERTED BY THE STATE AND PREVIOUSLY UNRESOLVED/ BECAUSE
TRIAL COUNSEL HAS NOT BEEN DEPOSITION CONCERNING THE APPLICANT'S ALLEG
ATION THAT HE FAILED TO INVESTIGATE.
PRAYER
WHEREFORE, PROMISES, CONSIDERED, APPLICANT PRAYS THAT THE COURT OF
CRIMINAL APPEALS WOULD HOLD HIS APPLICATION FOR WRIT OF HABEAS CORPUS
IN ABEYANCE AND REMAND WITH AN ORDER TO THE TRIAL COURT TO HOLD AN
EVIDENTIARY HEARING TO ALLOW APPLICANT TO FULLY DEVELOP HIS ALLEGATIONS
AND RETURN A TRANSCRIPTION OF THE COURT REPORTER'S NOTES AND A FINDINGS
BY THE COURT WITHIN A SPECIFIC TIME, WITH ANT EXTENSION TO BE OBTAINED
BY THE COURT OF CRIMINAL APPEALS. SEE EXPARTE REYNA, 701 S.W.2d 921(T.C.A.
1986)
RESPECTFULLY/
RANDY J.AKAIZER # 1730604
C.T.TERRELL UNIT
1300 F.M. 655
ROSHARON, TX 77583
UNSWORN DECLARATION
1/ RANDY J. KAIZER/ DO HEREBY DECLARE UNDER THE PENALTY OF PERJURY
THAT THE FOREGOING SUGGESTION FOR A REMAND TO THE TRIAL COURT FOR AN
EVIDENTIARY HEARING IS TRUE AND CORRECT.
EXCUTED ON:, (fQ'/fa- /j ^^ANDW^Il^Tl730604
CERTIFICATE OF SERVICE
1/ RANDY J. KAIZER DO CERTIFY THAT A TRUE AND CORRECT COPY OF THE
FOREGOING SUGGESTION FOR REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY
HEARING WAS PLACED IN THE PRISON MAIL BX WITH PRE-PAID POSTAGE ON THIS
'dV'^ DAY OF /rp^'l 2015.
r- tfoAf^H
EXCUTED °N: {f""r ' ' RA%f J^KA^ER #1730604
C.T.TERRELL UNIT
1300 F.M. 655
ROSHARON/ TX 77583
4.
Kaizer, Randy
Combined Opinion